Presidential panel recommends limits on NSA spying
WASHINGTON — A presidential task force has urged President Obama to impose significant curbs on National Security Agency operations, including an end to bulk collection of domestic telephone records, reform of a secret surveillance court and limits to spying on close foreign allies.
The independent five-member panel said its 46 recommendations were designed to add transparency and accountability at the NSA, which has vastly expanded its ability to secretly intercept Internet traffic and other communications since the Sept. 11, 2001, terrorist attacks.
Task force member Michael Morell, who retired in March as acting head of the CIA, said the recommendations would not diminish America’s ability to collect the intelligence needed to safeguard national security against terrorists and other threats.
“We’re not in any way recommending the disarming of the intelligence community,” he said at a news briefing Wednesday. “We believe there needs to be some more oversight.”
Another member, Richard Clarke, a counter-terrorism advisor to President George W. Bush, said the NSA had overreached because it could.
“What we’re saying is, just because we can doesn’t mean we should,” Clarke said.
The 303-page report marks the latest blow to the NSA, which has faced intense criticism since former contractor Edward Snowden began leaking classified documents about long-secret American surveillance operations and data collection at home and abroad.
But it also puts intense pressure on Obama, who now must decide whether to embrace or ignore recommendations from a team of senior advisors he personally selected in August as the uproar over the Snowden disclosures was building. Obama, who already has rejected proposals to appoint a civilian director of the NSA, could impose some of the changes, while others would require congressional action.
Early this week, a federal judge in Washington ruled that the NSA’s bulk collection of hundreds of millions of domestic telephone calling records, which Snowden revealed and which has caused the greatest concern to civil liberties groups, is “almost Orwellian” and probably violates the Constitution.
White House officials declined to immediately assess the report, submitted to Obama on Friday. They said the president would consult with Congress on possible reforms and announce in January which recommendations he would approve and which he wouldn’t.
“It’s a substantive, lengthy report, and it merits serious review and assessment,” spokesman Jay Carney told reporters.
Obama won’t make any “snap judgments,” another aide said, but will review it after he leaves Friday for a family vacation in Hawaii.
NSA officials did not respond to requests for comment.
Civil liberties groups and other critics quickly hailed the recommendations as overdue to end what they view as dragnet collection of personal data on virtually every American and improper use of technology companies to monitor private communications.
“The message to the NSA is now coming from every branch of government, from every corner of our nation: NSA, you’ve gone too far,” said Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, who is backing a bill to end bulk collection of domestic phone records.
“NSA’s surveillance programs are un-American, unconstitutional and need to be reined in,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “We urge President Obama to accept his own review panel’s recommendations and end these programs.”
The advisors’ most significant proposal would stop the NSA from collecting and archiving hundreds of millions of domestic telephone phone records that show the date, time and numbers called. The NSA and its supporters say the program is critical to determine whether terrorists or spies are communicating with people in the United States.
The report says the data should be stored by the telephone companies, or a private third-party entity, to safeguard the privacy of other Americans. U.S. intelligence officials have said such a system is technically possible, but would be expensive and time-consuming to create.
“Our fundamental recommendation is that the government should not hold this data,” Morell said.
Another recommendation would limit NSA eavesdropping on leaders of closely allied nations. The disclosure that the NSA secretly monitored cellphones of leaders in Germany, Mexico, Brazil and elsewhere has caused a furor in those countries and chilled diplomatic relations with Washington.
Before such leaders are monitored in the future, the report recommends, the White House should impose a screening process that weighs the potential economic and diplomatic costs if the operation becomes public.
It said U.S. officials should answer five questions before proposing to eavesdrop on a foreign leader, including whether that leader is suspected of lying to U.S. officials. It also recommended that the president and his advisors, not the intelligence agencies, decide whether to spy on those leaders.
The group also suggested reforming the Foreign Intelligence Surveillance Court, a panel of federal judges that operates in secret and oversees national security surveillance in the United States.
The secret court, which was created in 1978, only hears arguments in favor of surveillance from government lawyers. The panel recommends creating an adversarial legal system by appointing a “public interest advocate to represent the interests of privacy and civil liberties” before the court.
The report calls for the U.S. to forge “no spying” agreements with close allies. It does not name potential candidates, but notes that “only a very few new such relationships are likely in the short to medium term.”
The panel also suggests that the 1974 Privacy Act be applied to intelligence data collected about foreigners, a standard that would sharply limit how such data could be disclosed or shared outside the intelligence community. The Department of Homeland Security already applies that legal standard to data it collects on foreigners, the report says.
The panel also recommends prohibiting the NSA from asking technology companies to insert secret “back doors” into their software so the agency can gain access to encrypted communications and networks. Officials from major telecommunications and technology companies met with Obama at the White House on Monday to complain about the NSA operations and push for reforms.
The White House is unlikely to approve at least one of the panel’s recommendations: The panel urged the president to break up the leadership of the NSA, a civilian agency that does electronic surveillance and code-breaking, and the Pentagon’s Cyber Command, which conducts computer warfare. The two agencies currently share a single military commander.
The White House announced last week, however, that it would continue to appoint a single military commander for both posts when Gen. Keith Alexander, the current commander, retires next year.
The report was released after a morning meeting between Obama and the task force in the White House Situation Room, officials said. In addition to Morell and Clarke, the panel includes Geoffrey Stone, a University of Chicago law professor; Cass Sunstein, former White House regulatory official; and Peter Swire, a professor at Georgia Tech and a former privacy officer in the Clinton administration.
“The president noted that the group’s report represented a consensus view, particularly significant given the broad scope of the members’ expertise in counter-terrorism, intelligence, oversight, privacy and civil liberties,” the White House said in a statement.
Michael A. Memoli in the Washington bureau contributed to this report.
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